TMI Blog2012 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... e-Palmolive as a provider of service of packing, he is able to pass on the credit of duty and taxes paid on input and input services used by him, which would not be the case if he is considered as a manufacturer whose products are exempt - appellant when failed to claim the exemption fulfill conditions of the exemption notification, that was deniable - appellant appears to have not come out with clean hands - adjudication is not barred by limitation - While on one hand there is claim of no manufacturer, on the other there is claim of manufacture - appellant directed to make pre-deposit - E/2831/2010 - 1067/2011-EX(PB) - Dated:- 7-9-2011 - S/Shri D.N. Panda, Mathew John, JJ. REPRESENTED BY : Shri Ronny John, Advocate, for the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove and take that into record making a noting in the Registry s note column in order sheet. 1.3 When adjournments are repeatedly taken, we perused the record to find out the gravity of the matter since stay application in this case was filed on 3-9-2010 as against adjudication order dated 31-5-2010 involving duty demand of Rs. 14,93,20,958/- with equal amount of penalty under law followed by interest against duty demand. Show Cause Notice (SCN) was issued on 9-4-2009 and 4-2-2010 and adjudication was done on 31-5-2010 by a common order against these two SCNs. When the appellant filed Stay Application on 3-9-2010 and adjournments are taken repeatedly, such act has caused prejudice to the interest of Revenue when huge demand of crores of ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same to the appellant. According to appellant such an activity was not amounting to manufacture under Section 2(f) of Central Excise Act, 1944. 2.2 It was submitted on behalf of appellant that toothpaste is covered by sub-heading 3306.1020 and brush is covered by sub-heading 9603.2100 of Central Excise Tariff Act, 1985 and there is no deemed definition of manufacture when combo-pack is done. Ld. Counsel submits that the goods are not being manufactured and no law exists in the Tariff schedule to levy duty. His further submission is that mere packing does not amount to manufacture, following various rulings. 2.3 It was also submitted that the authority below had not allowed area based exemption benefit without any contrary evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Act, 1944, the appellant shall be a manufacturer within the well defined terms of law. He pleads that when the activity gave rise to a stage of the product to be marketable, the value addition made during packing process, contributes to concept of manufacture whether carried out directly or as ancillary or incidentally. This is amounting to manufacture. Taking this aspect into consideration, legislature brought all ancillary and incidental activities including packing as well as repacking although not directly called as manufacture to the fold of inclusive definition of the term manufacture when they considered that to be proper. His further submission was that the appellant did not claim area based benefit exemption unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on demonstrated in para 31 and para 35 of the impugned order show that he had not deprived the assessee from the process of justice and granted opportunity to lead its defence. 5. We had curiosity to know why the appellant denies to be a manufacturer. We tried to examine averment of appellant relating to registration under Finance Act, 1994 as Business Auxiliary Service provider. Here it is also relevant that when the appellant raises invoices on Colgate-Palmolive as a provider of service of packing, he is able to pass on the credit of duty and taxes paid on input and input services used by him, which would not be the case if he is considered as a manufacturer whose products are exempt. So prima facie this is not a case of claiming an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of questionable modus operandi followed. 8. We have looked into citations made by the appellant and found that appellant s case is not the case of declaration. While on one hand there is claim of no manufacturer, on the other there is claim of manufacture. When ld. Counsel pleads that there is a financial hardship of the appellant, taking that into consideration and making an overall assessment of the matter as stated above, we direct the appellant to make pre-deposit of Rs. 8 crores (eight crores) which is nearly 50% of the duty demand within six weeks from today and make compliance on 12-12-2011. Subject to compliance, realization of balance demand shall be stayed during pendency of appeal. (Dictated and pronounced in the Open Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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